Publication Date: Friday, January 16, 2004
Lead and asbestos
Lead and asbestos
(January 16, 2004) How much do you have to disclose?
by J. Robert Taylor, J.D.
Q We moved into a home that was built in the early 1950s. I have small children and am concerned about the dangers of lead-based paint. Can I have the paint in my home tested? Do I have to disclose the presence of lead-based paint to tenants if I rent it out or to a buyer if I sell my home?
A Any home built before 1978 likely has lead-based paint on some surface of the interior or exterior of the home. Federal law requires that sellers and landlords must disclose the presence of lead-based paint if they "know" it exists. There are standard forms and information booklets that must be given to all prospective tenants and buyers if the home or apartment was built prior to 1978. Once you test the paint at a laboratory and it shows that there is lead in it then you "know" that you must disclose it and the report you receive.
Practically speaking if your home was constructed prior to 1978 almost all exterior and interior oil-based paints contained lead, therefore testing for lead is a waste of time. The safest approach is to assume that you have lead-based paint and carefully maintain all painted surfaces so that children will not be at risk for ingesting flaking paint. Repainting older surfaces also is helpful in encapsulating old lead-based paint, however preparation of old surfaces can spread dust and flaked paint on the floor. Proper care should be taken to keep children out of areas where painting is taking place and also carefully cleaning and disposing of all dust and paint chips.
Unlike many other pollutants, lead never breaks down in the environment. Once it is in the soil it will remain there until the polluted soil is removed. If you are renting an older home and it has areas of flaking paint, insist that the landlord repaint and completely mask off and clean up the area being painted once the job is done. I am happy to mail or e-mail a booklet giving more information about this subject to anyone who would like more information.
Q I am contemplating selling my home and the ceilings in part of the house have acoustic "popcorn" texturing to them. I suspect that this might have asbestos in it. Do I have to remove the asbestos before selling my home?
A No. Not all "popcorn" ceilings have asbestos content, although if it was applied prior to 1980 there is certainly a risk that it does have asbestos content. Without chemical analysis you cannot tell if it contains asbestos. You may remove a small portion or have an expert do so and then take it to a laboratory for testing. Once you know it contains asbestos you must disclose this fact to the buyer and provide him/her with a copy of the report. If you just suspect it may have asbestos, but do not know for sure, then you should disclose that fact to the buyer. Many homes are sold that have asbestos in floor coverings, siding, roofing, flues, duct wrapping and insulation of hot water pipes.
Most homes built prior to 1950 commonly have one or more of these uses of asbestos unless there has been substantial remodeling or remediation performed. This means a lot of people are living with asbestos and don't know it. Asbestos can cause lung disease if inhaled, thus the danger comes when the asbestos is "friable" and is deteriorating. It is also dangerous to disturb the asbestos fibers by drilling into or scraping them as they could become airborne in the process.
Very small areas of asbestos may be removed by the homeowner, however this is not recommended unless you are well aware of what you are doing. There are companies that are specifically licensed to remove this material in a safe manner and I would recommend you have an expert do the removal in most instances. Where the asbestos is in good "non-friable" condition it is safe to live with as long as it is not disturbed and routinely inspected. I am happy to mail or e-mail a booklet giving more information about this subject.
J. Robert Taylor, J. D., a real estate attorney and broker for more than 20 years, has served as an expert witness and mediator and is on the judicial arbitration panel for Santa Clara County Superior Court. He is 2004 chairman of the Palo Alto district for the Silicon Valley Board of Realtors. Send questions to Taylor c/o Palo Alto Weekly, P.O. Box 1610, Palo Alto, CA, or via e-mail at btaylor@taylorproperties.com.
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